Virgin America and Jet Blue are defendants in separate lawsuits alleging that they do not pay their flight attendants for all the hours that they work. According to the complaints, the airlines, require the flight attendants to put in time on the ground getting ready for their flights, but do not start paying them until they are on board ready to go. The Virgin America complaint is available here, and the Jet Blue complaint here.
The standards for what are sometime called preparatory activities (or donning and doffing, when referring to uniforms or protective gear) differ under federal and California law:
Under California law, time spent on preparatory activities is compensable if the activity is compelled by the necessities of the employer’s business and is not de minimis. The standard is explained in the following opinion letters from the Division of Labor Standards Enforcement: 1994.02.03-3, 1998-12-23, 1988-05-16.
Section 203(o) of the Fair Labor Standards Act excludes from work time “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” In addition, the Portal-To-Portal Act provides in section 254 that employers are not liable under the FLSA for the following activities: “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities,” unless there is a contrary agreement or custom and practice. The effect of those provisions and of Supreme Court interpretations is discussed in Wage and Hour Advisory Memorandum 2006-2.
